Citation Nr: 0934046
Decision Date: 09/11/09 Archive Date: 09/17/09
DOCKET NO. 06-27 006 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to service connection for a bilateral
shoulder disorder.
2. Entitlement to service connection for a thoracolumbar
spine disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. M. Clark, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 1983 to August
2004.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) from an October 2004 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Winston-Salem, North Carolina. [Due to the location of the
Veteran's residence, the jurisdiction of his appeal remains
with the RO in Atlanta, Georgia.]
For the reasons set forth below, the issue of entitlement to
service connection for a thoracolumbar spine disorder will be
addressed in the REMAND portion of the decision below and is
being REMANDED to the RO via the Appeals Management Center
(AMC), in Washington, DC. VA will notify the Veteran if
further action is required.
FINDING OF FACT
Chronic bilateral shoulder pathology is not currently shown.
CONCLUSION OF LAW
A chronic bilateral shoulder disorder was not incurred in or
aggravated by active duty service. 38 U.S.C.A. §§ 1110,
1111, 1131, 1132, 5103(a), 5103A, 5107(b) (West 2002 & Supp.
2009); 38 C.F.R. §§ 3.102, 3.159 (as amended), 3.303 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
Under the relevant laws and regulations, service connection
may be granted for a disability resulting from disease or
injury incurred in or aggravated by active service. 38
U.S.C.A. §§ 1110, 1131 (West 2002). If a chronic disease is
shown in service, subsequent manifestations of the same
chronic disease at any later date, however remote, may be
service connected, unless clearly attributable to
intercurrent causes. 38 C.F.R. § 3.303(b) (2008). However,
continuity of symptoms is required where a condition in
service is noted but is not, in fact, chronic or where a
diagnosis of chronicity may be legitimately questioned.
38 C.F.R. § 3.303(b) (2008).
Further, service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 U.S.C.A. § 1113(b) (West
2002); 38 C.F.R. § 3.303(d) (2008). The Board must determine
whether the evidence supports the claim or is in relative
equipoise, with the appellant prevailing in either case, or
whether the preponderance of the evidence is against the
claim, in which case, service connection must be denied.
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
The Veteran is claiming entitlement to service connection for
a bilateral shoulder disorder. The service treatment records
(STRs) reflect complaints of right shoulder pain in December
1986. Almost ten years later, in February 1995, he sought
treatment for right shoulder pain. He was diagnosed with
tendonitis of his right shoulder.
With respect to the Veteran's left shoulder, the STRs reflect
that he sought treatment for left shoulder pain in September
1984. He was diagnosed with bursitis of the left shoulder.
In April 1986, he once again sought treatment for left
shoulder pain. The clinician noted that the Veteran had
originally injured himself wrestling in high school and had
had no recent trauma. He was diagnosed with a small fracture
at the tendon insertion. A week later, his shoulders were
once again evaluated, and it was noted that there was
"negative tendonitis." X-rays taken shortly thereafter
were within normal limits. A few days later, a STR indicates
resolving left shoulder tendonitis.
Following the February 1995 (right shoulder) and the April
1986 (left shoulder) treatment records, there are no
subsequent STRs demonstrating treatment for either a chronic
right or left shoulder disorder. In fact, medical
examinations completed in December 1986, March 1994, December
1994, and May 2001 noted normal clinical evaluations of his
upper extremities. Further, in Reports of Medical History
(ROMH) completed in March 1994, December 1994, March 1997,
and May 2001, the Veteran denied ever having had or currently
having a painful or "trick" shoulder.
In April 2004, just prior to discharge, and 9 years after
last being treated for his right shoulder, and 18 years after
seeking treatment for his left shoulder, the Veteran
underwent a separation examination. At his examination, he
complained of constant pain and clicking in his shoulders,
more severe in his right shoulder. He indicated that he was
not receiving any treatment for either of his shoulders, had
not had any prosthetic implants of the joints, and suffered
from no functional impairment.
Upon physical examination, the VA examiner noted that the
Veteran's shoulder joints appeared normal and that he (the
Veteran) exhibited full range of motion (flexion, abduction,
external rotation, internal rotation) in both shoulders. The
examiner noted that the ranges of motion of both of the
Veteran's shoulder were not additionally limited by pain,
fatigue, weakness, lack of endurance or incoordination. X-
rays taken at that time indicated that both his right and
left shoulders were within normal limits. He was diagnosed
with "status-post chronic right and left sided rotator cuff
syndrome with no residuals;" the examiner noted that there
were no current objective factors of either a right or left
shoulder disorder. Rather, it was only noted that the
Veteran exhibited subjective factors of pain and stiffness in
his shoulders. As such, a chronic bilateral shoulder
disability was not shown in service.
There are no post-service treatment records with respect to
either the Veteran's right, or left, shoulder. Based on the
April 2004 separation examination, no chronic right or left
shoulder disorder has been demonstrated. In the absence of a
current clinical diagnosis, service connection for either
right or left shoulder pain must be denied. Sanchez- Benitez
v. West, 13 Vet. App. 282, 285 (1999) (holding that pain
alone, without a diagnosed or identifiable underlying malady
or condition, does not in and of itself constitute a
disability for which service connection may be granted); see
also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in
the absence of proof of the presently claimed disability,
there can be no valid claim).
In addition to the absence of post-service shoulder
diagnoses, the evidence of record includes the Veteran's
statements asserting a continuity of pertinent symptomatology
since service. The Board acknowledges that lay evidence
concerning continuity of symptoms after service, if credible,
is ultimately competent, regardless of the lack of
contemporaneous medical evidence. Buchanan v. Nicholson, 451
F.3d 1331 (Fed. Cir. 2006).
As discussed herein, however, post-service evidence does not
reflect the presence of a diagnosis of a bilateral shoulder
disorder. Without such evidence, continuity cannot be found
to be established, either through the competent evidence or
through the Veteran's statements.
Where, as here, there is no competent evidence of a current
disability, the preponderance of the evidence is against a
claim for service connection for such a disorder. See
Hickson v. West, 12 Vet. App. 247, 253 (1999). As the
preponderance of the evidence is against the Veteran's claim,
the benefit of the doubt provision does not apply. Service
connection for a bilateral shoulder disorder is not
warranted.
Finally, as provided for by the Veterans Claims Assistance
Act of 2000 (VCAA), VA has a duty to notify and assist
claimants in substantiating a claim for VA benefits.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002
& Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (as
amended), 3.326(a) (2008).
Proper notice from VA must inform the claimant of any
information and medical or lay evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002).
This notice must be provided prior to an initial unfavorable
decision on a claim by the RO. Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.
App. 112 (2004).
When VCAA notice is delinquent or erroneous, the "rule of
prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2).
In the event that a VA notice error occurs regarding the
information or evidence necessary to substantiate a claim, VA
bears the burden to show that the error was harmless.
However, the appellant bears the burden of showing harm when
not notified whether the necessary information or evidence is
expected to be obtained by VA or provided by the appellant.
See Shinseki v. Sanders, 556 U.S. ___ (2009).
In addition, the notice requirements of the VCAA apply to all
five elements of a service-connection claim, including: (1)
veteran status; (2) existence of a disability; (3) a
connection between the Veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. See Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006). Further, this notice must include information
that a disability rating and an effective date for the award
of benefits will be assigned if service connection is
awarded. Id. at 486.
Here, the VCAA duty to notify was satisfied by way of a
letter sent to the Veteran in March 2004 that fully addressed
all notice elements and was sent prior to the initial RO
decision in this matter. The letter informed him of what
evidence was required to substantiate the claim and of his
and VA's respective duties for obtaining evidence. Under
these circumstances, the Board finds that the notification
requirements of the VCAA have been satisfied as to both
timing and content.
With respect to the Dingess requirements, in March 2006, the
RO provided the Veteran with notice of what type of
information and evidence was needed to establish a disability
rating, as well as notice of the type of evidence necessary
to establish an effective date. With that letter, the RO
effectively satisfied the remaining notice requirements with
respect to the issue on appeal. [The timing defect of this
correspondence was cured by the RO's subsequent re-
adjudication of this claim and issuance of a statement of the
case in April 2006.]
Therefore, adequate notice was provided to the Veteran prior
to the transfer and certification of his case to the Board
and complied with the requirements of 38 U.S.C.A.. § 5103(a)
and 38 C.F.R. § 3.159(b).
Next, VA has a duty to assist a veteran in the development of
the claim. This duty includes assisting him or her in the
procurement of service treatment records and other pertinent
records, and providing an examination when necessary. See
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
In determining whether a medical examination be provided or
medical opinion obtained, there are four factors to consider:
(1) competent evidence of a current disability or persistent
or recurrent symptoms of a disability; (2) evidence
establishing an in-service event, injury, or disease, or
manifestations during the presumptive period; (3) an
indication that the disability or symptoms may be associated
with service; and (4) whether there otherwise is sufficient
competent medical evidence of record to make a decision on
the claim.
With respect to the third factor, the types of evidence that
"indicate" that a current disorder "may be associated"
with service include, but are not limited to, medical
evidence that suggests a nexus but is too equivocal or
lacking in specificity to support a decision on the merits,
or credible evidence of continuity of symptomatology such as
pain or other symptoms capable of lay observation. McLendon
v. Nicholson, 20 Vet. App. 79 (2006).
After a careful review of the file, the Board finds that all
necessary development has been accomplished, and therefore
appellate review may proceed without prejudice to the
Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993).
There are no pertinent post-service treatment records, nor
has the Veteran contended otherwise. Next, a specific VA
medical examination was completed in April 2004, just prior
to his discharge. As that evaluation showed no shoulder
pathology and as there are no post-service medical records
reflecting a current bilateral shoulder disability, a remand
for a current VA examination to include a medical nexus
opinion is not warranted. Therefore, the Board finds that
available records and medical evidence have been obtained in
order to make an adequate determination as to the claim
adjudicated herein.
Significantly, neither the Veteran nor his representative has
identified, and the record does not otherwise indicate, any
additional existing evidence that is necessary for a fair
adjudication of this issue that has not been obtained.
Hence, no further notice or assistance is required to fulfill
VA's duty to assist in the development of this claim. Smith
v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed.
Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001);
see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
ORDER
Service connection for a bilateral shoulder disorder is
denied.
REMAND
As previously noted herein, the VCAA describes VA's duty to
notify and assist claimants in substantiating a claim for VA
benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West
2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159 (as amended)
and 3.326(a) (2008). The Board finds that additional
development is necessary to satisfy VA's obligations under
the VCAA with respect to the Veteran's claim for service
connection for a thoracolumbar spine disorder. Specifically,
VCAA notice should be sent, and a VA medical opinion should
be obtained.
The Board notes that, although the Veteran's claim was
adjudicated in an October 2004 rating decision, no VCAA
notice was ever sent. As the applicable service connection
laws and regulations pertaining to this claim have not yet
been sent to the Veteran, VCAA notice must be sent.
Further, the Board notes that the Veteran sought treatment
for mid back pain in August 1989. A May 2001 medical
examination diagnosed symptomatic slight scoliosis. X-rays
taken at the April 2004 VA examination showed scoliosis of
the thoracic spine (convexed to the right and centered at the
T12 level) as well as deviation of the upper lumbar spine to
the right of midline, secondary to scoliosis of the
thoracolumbar spine. Based on these radiographic findings,
the examiner diagnosed dextroscoliosis of the thoracolumbar
spine.
It is unclear from a review of the record whether the
Veteran's back problem was the result of a congenital
abnormality or was something that was caused by service. A
remand is, therefore, necessary to accord the Veteran an
opportunity to undergo a VA examination that addresses the
etiology of his back disorder.
Accordingly, the case is REMANDED for the following actions:
1. Send the Veteran VCAA notice
pertaining to the issue of entitlement to
service connection for a thoracic spine
disorder.
2. Schedule the Veteran for an
appropriate VA examination of his back.
The claims folder must be made
available to the examiner for review as
part of the examination process. All
indicated tests, including X-rays,
should be conducted. A complete
rationale should be provided for any
opinion expressed.
The examiner should specifically answer
the following questions:
(a) Is it at least as likely as not
(e.g., a 50% probability or greater)
that the Veteran has a congenital
abnormality of his back. If so, is
such a condition a defect or disease?
See VAOPGCPREC 82-90 (July 18, 1990)
(which stipulates that a congenital
abnormality that is subject to
improvement or deterioration is
considered a 'disease').
(b) If the examiner identifies a
congenital 'defect,' then he/she should
offer an opinion as to whether it at
least as likely as not (e.g., a 50%
probability or greater) that there is
any superimposed disease or injury in
connection with the congenital defect
and, if so, whether it is at least as
likely as not (e.g., a 50% probability
or greater) that the identified
superimposed disease or injury is
related to the Veteran's active
military service.
(c) If the examiner finds a congenital
'disease,' then he/she should offer an
opinion as to the medical probabilities
that any such disease was incurred in,
or aggravated by (e.g., a worsening of
the underlying condition as compared to
an increase in symptoms), the Veteran's
active service. The examiner should
explain whether the evidence clearly
and unmistakably (undebatably)
demonstrates that the disease pre-
existed service and was not aggravated
thereby. If aggravation is found, the
examiner should attempt to quantify the
extent of additional disability
resulting from the aggravation (e.g.,
whether the evidence clearly and
unmistakably demonstrates that the
disease did not worsen beyond natural
progression during service).
(d) In the alternative, if the
examiner concludes that it is at least
as likely as not (e.g., a 50%
probability or greater) that the
Veteran's back was normal at the time
of his service enlistment, with no pre-
existing or congenital disabilities,
he/she should provide an opinion as to
whether it is at least as likely as not
that currently shown back disorder had
its clinical onset in service or is
otherwise related to active service.
3. Upon completion of the above,
readjudicate the issue of entitlement
to service connection for a
thoracolumbar spine disorder. If the
benefit sought on appeal remains
denied, the Veteran and his
representative should be furnished an
appropriate supplemental statement of
the case and be provided an opportunity
to respond. Thereafter, the case
should be returned to the Board for
further appellate consideration, as
appropriate.
No action is required of the Veteran until he is notified by
the RO; however, he is advised that failure to report for any
scheduled examination may result in the denial of his claim.
38 C.F.R. § 3.655 (2008). He has the right to submit
additional evidence and argument on the matter that the Board
has remanded. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B,
7112 (West Supp. 2008).
______________________________________________
THERESA M. CATINO
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs